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Court Orders Recusal in Caperton v. Massey Coal:

Among the several opinions handed down today, the Supreme Court ordered the recusal of a West Virginia Supreme Court justice due to the excessive independent campaign expenditures made by the CEO of a company in a case before that court. The majority opinion was written by Justice Kennedy, and joined by the four liberal justices. Chief Justice Roberts wrote a dissent on behalf of the Court's conservatives. Justice Scalia also wrote a separate dissent. The opinion is here. SCOTUSBlog has an early summary here.

FlimFlamSam:
What is the federal issue?
6.8.2009 11:31am
Frog Leg (mail):
The federal issue was deprivation of due process from having a judge who should be disqualified.
6.8.2009 11:35am
Terrivus:
The Chief's dissent is a piece of work. He might as well have nailed it to the door of the Supreme Court. ("40 Theses")
6.8.2009 11:40am
Jon Roland (mail) (www):
This is an equity decision, not a constitutional construction, and I agree with it.

However, as better solution would be for judges not to be appointed or elected to particular courts, but to a pool, and assigned to courts and cases at random from the pool, with exclusions for conflicts of interest like this. There would have been no incentive for the large donations if the court or case on which the judge would serve could not be predicted.
6.8.2009 11:43am
tbaugh (mail):
So participation by John Marshall (and writing the opinion) in Marbury v Madison violated due process, as the litigation arose because Secretary of State John Marshall left Marbury’s commission in his desk when he left the Adams administration?
6.8.2009 11:45am
Pyrrho:
Tbaugh: I sure as hell think Marshall's decision to participate in the case was a denial of due process. Of course, there is no super-Supreme Court reviewing the decisions of the U.S. Supreme Court. But if a state court justice did what Marshall did, I would certainly hope the Supreme Court would not let him sit on my case (and in fact, that would be completely consistent with the precedent agreed upon by both the majority and dissent in Caperton)
6.8.2009 11:47am
Soronel Haetir (mail):
One problem I have here, the funds were spent solely to defeat the opponent, aiui, not to help the challenger directly. IE, it likely wouldn't have mattered who the challenger was, they still would have received this aid. Given what I've read of W.V's courts it will not surprise me if cases start coming along where every judge has to recuse.

If we are going to have judicial elections I would at least like to see some sort of positive assistance requirement, rather than a large enough share of the election funds being a suffiecient condition.
6.8.2009 11:48am
Soronel Haetir (mail):

Of course, there is no super-Supreme Court reviewing
the decisions of the U.S. Supreme Court


Sure there is, it's just that the threshold to exercise that power is extremely high.
6.8.2009 11:51am
David M. Nieporent (www):
Of course, there is no super-Supreme Court reviewing the decisions of the U.S. Supreme Court
But is there a super-duper Supreme Court?
6.8.2009 11:56am
Pyrrho:
"If we are going to have judicial elections I would at least like to see some sort of positive assistance requirement, rather than a large enough share of the election funds being a suffiecient condition."

The Court held: "The inquirycenters on the contribution’s relative size in comparison tothe total amount of money contributed to the campaign,the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election." I do not think they are saying that share of election funds is, by itself, a sufficient condition. It is just one factor to consider, along with the effect of the funds, which I would think satisfies your "positive assistance requirement."
6.8.2009 11:57am
J.R.L.:
So without reading the opinion or knowing anything about the case (I'm sure I will be the only one!), does this set up a scenario where you can get a popular incumbent who might be predisposed to rule against you disqualified by campaigning against their opponent (knowing they would win anyway)?
6.8.2009 11:58am
David Hardy (mail) (www):
Wd like to see this have an effect on some federal agency practice. Often there are provisions for local agents to take some admin. action -- revoking licenses, assessing civil penalties -- with some internal review. In some cases, the review is by Admin Law Judges, who at least have some independence. Difference command structure, reporting to other ALJs rather than agency, etc.. (That does not change the fact that they often office in the same suite, and know one side on personal basis, but it's better than nothing).

Other agencies have a nominal "hearing" before a person who is just another agent, pulled in from an out of town office. Needless to say, nobody wants to go down as something other than a "team player" and thus the ruling is always upheld.

In either event there is judicial review, but it's more nominal than real. Courts wind up with a cold written record, on a subject matter strange to them, and whether consciously or not, tend to give the agency decision much deference.
6.8.2009 12:00pm
Soronel Haetir (mail):
And yes, Roberts' dissent is awesome.
6.8.2009 12:03pm
David M. Nieporent (www):
Ludicrous decision; Roberts' dissent makes it clear.

It's a Kennedy special: rejecting bright-line rules on the theory that there's some exceptional case out there that would cross that line that he just has to leave open the possibility of rectifying. (Usually he argues that the instant case isn't one of those exceptions, but today he went the other way on that.) Note that he doesn't even address the issues raised by Roberts.

This is one of those cases that, assuming he serves that long, Scalia will be overturning at some point as unworkable.
6.8.2009 12:08pm
D.A.:
This is one of those cases that, assuming lawyers and judges adhere to their judicial ethics, should never have come up in the first place and shouldn't come up again.
6.8.2009 12:11pm
Anon321:
Not to rehash the whole debate over Whelan's concern with federal courts making decisions on the basis of policy, but I'd note that policy considerations are quite obviously at the very heart of this case. The Chief Justice's dissent (at least at first glance) could very roughly be summarized as "Sure, this may have been a denial of due process, but if we rule that way on the basis of a vague standard, it will have all sorts of negative consequences." The dispute between the majority and the dissent was not an interpretive dispute over the meaning of due process, but rather a dispute over whether, as a matter of policy, it's wise to adopt a rule that has the potential to affect judicial elections and generate lots of recusal litigation. The horrors!
6.8.2009 12:13pm
Steve:
Rick Pildes has a thoughtful post on the decision here.
6.8.2009 12:13pm
ruuffles (mail) (www):

It's a Kennedy special: rejecting bright-line rules on the theory that there's some exceptional case out there that would cross that line that he just has to leave open the possibility of rectifying.

Oh you mean like Bush v Gore, that specifically said it was not a precedent?
6.8.2009 12:15pm
Hans Bader (mail):
The independent expenditures discussed in Caperton v. Massey Coal had less effect on the outcome of that judicial race than newspaper endorsements do in many races.

Newsweek's Evan Thomas once admitted that favorable media coverage is worth 15 percent of the vote for Democrats.

Does that mean elected state supreme courts should have to recuse themselves in media cases involving newspapers?
6.8.2009 12:17pm
Dilan Esper (mail) (www):
This is actually a nice example of the problems with the conservative preference for bright line rules. The actual record of judicial elections in West Virginia is actually far worse than this opinion portrays it. And the reality is that campaign contributors really do influence the decisions of the courts there and buy a form of justice for themselves.

The Court takes a modest stand against this, and Chief Justice Roberts has a temper tantrum over the fact that you can't draw a bright line rule. No, John, you can't, not when you are talking about political corruption. And while that may be a good reason to lay off direct regulation of campaign speech, telling a judge to recuse isn't nearly as severe as telling someone they can't speak.

The world isn't going to end because of this decision. But maybe, just maybe, the West Virginia courts will start giving litigants fighting entrenched business interests a fairer shake. Can't have that, can we John?
6.8.2009 12:21pm
David M. Nieporent (www):
This is actually a nice example of the problems with the conservative preference for bright line rules. The actual record of judicial elections in West Virginia is actually far worse than this opinion portrays it. And the reality is that campaign contributors really do influence the decisions of the courts there and buy a form of justice for themselves.
And as Scalia points out in his separate dissent, the United States constitution does not exist to solve all the problems in the country.

By the way, note that there were no "campaign contributors" here; these were independent expenditures.
6.8.2009 12:25pm
Houston Lawyer:
As a member of the guild, I should applaud when the Supreme Court makes more work for attorneys. The potential for gamesmanship following this ruling is mind boggling. Among all the other clichés covered by the dissents, they left out "if it ain't broke, don't fix it".
6.8.2009 12:25pm
vassil_petrov (mail):
"Turn it over, turn it over, for all is therein"

Justice Scalia at his best.
6.8.2009 12:28pm
Steve:
I find Justice Scalia's dissent curious. He believes that confidence in the judiciary will be more eroded by the fact that a bunch of Caperton motions will be filed in future cases than by the perception that a litigant was able to purchase a reversal of a $50 million judgment by spending millions to unseat an incumbent justice. It's not as if a widespread perception of bias just goes away because the federal courts refuse to entertain an argument.

As for the Chief Justice's dissent, I have to agree with Dilan that it was little more than a temper tantrum. Yes, yes, you think it's the end of the world that the majority didn't draw a bright-line rule that would resolve all the various hypothetical cases you cite. I think we got the point after the first couple hypotheticals.
6.8.2009 12:28pm
David M. Nieporent (www):
Oh you mean like Bush v Gore, that specifically said it was not a precedent?
It said no such thing. Seriously, people need to stop getting their talking points from Media Matters or whatever.

But based on what the Court's decision in BvG actually did say, the principle is sort of the same, I suppose, yes. (At least in BvG there was a potential excuse of a sort: it was deemed to be a rush situation, and perhaps there wasn't time to consider all the possible long-term ramifications of the decision before issuing it. That certainly isn't the case here, though, where Roberts laid out all those problems. I find it very odd that Kennedy didn't even address Roberts' dissent.)
6.8.2009 12:29pm
Dilan Esper (mail) (www):
And as Scalia points out in his separate dissent, the United States constitution does not exist to solve all the problems in the country.

He made that argument in his dissent in Herrera v. Collins as well, saying the Constitution permits the execution of innocent people. In each case, it's really convenient that Scalia says the Constitution doesn't exist to solve the problems of PEOPLE IN SITUATIONS HE AND HIS FAMILY AND FRIENDS WILL NEVER FACE.

Meanwhile, the Constitution apparently does exist to ensure that Scalia's preferred candidate in the 2000 Presidential election gets elected. And the Constitution does exist to permit the government to promote Scalia's religion, Christian monotheism.

Look, the fact is that the Due Process Clause was fully intended to protect against ANY sort of fundamental unfairness in the judicial process. The framers were intentionally vague. So there's actually no support whatsoever for Scalia's claim that the Constitution doesn't address this issue. He simply objects because the Constitution is being invoked to help people he doesn't give a crap about.
6.8.2009 12:30pm
Anon321:
If Chief Justice Roberts had been around at the time of the framing, I wonder how many questions he could have listed to demonstrate the absurdity and self-evident unworkability of saying that it's a constitutional violation when life, liberty, or property is taken without due process of law. Just imagine how many lawsuits those irresponsibly vague words might generate ...
6.8.2009 12:36pm
David M. Nieporent (www):
I find Justice Scalia's dissent curious. He believes that confidence in the judiciary will be more eroded by the fact that a bunch of Caperton motions will be filed in future cases than by the perception that a litigant was able to purchase a reversal of a $50 million judgment by spending millions to unseat an incumbent justice. It's not as if a widespread perception of bias just goes away because the federal courts refuse to entertain an argument.
It's as if a widespread perception of bias is created if thousands of litigants are filing motions and/or lawsuits claiming that there is such a bias and that such bias is unconstitutional.
6.8.2009 12:36pm
Frog Leg (mail):
I second Steve's recommendation of the Pildes commentary. Well worth a read.
6.8.2009 12:36pm
cjwynes (mail):
Wow, Chief Justice Roberts' dissent is so persuasive I can't believe it lost. The laundary list of questions raised by the court's holding, proving how completely unworkable this would be, is enough on its own to demolish the majority's position. Not to mention how the majority mischaracterized this as a "contribution" when it was an independant expenditure, and attributed the loss of the incumbent judge entirely to the money spent against him (because sitting appeals court judges *never* do anything that would merit non-retention, oh no, the voters must have been tricked.)

I'd wish this to be viewed, in the long run, as an isolated one-off holding, like Bush v Gore or the PGA disability case, that nobody considers to hold much precedential value. But knowing the plaintiff's bar, it's surely too much to hope that this will quietly go away. Look forward to plaintiff's attorneys raising this over and over again. They'll probably all start keeping an index of campaign contributions in their office.

And watch for some to use this as an excuse to push for federal-style judicial appointments, with no retention elections, in state court systems. It will be suggested by the legal establishment types that the way to avoid all these problems is just to remove retention elections, keeping "politics" (i.e. democracy) out of the selection/retention of judges (and, conveniently, entirely in the hands of the legal establishment itself.)
6.8.2009 12:39pm
Steve:
It's as if a widespread perception of bias is created if thousands of litigants are filing motions and/or lawsuits claiming that there is such a bias and that such bias is unconstitutional.

This seems remarkably silly to me. People base their perception of bias in the judiciary on the number of motions that get filed alleging bias? Since when?

Bear in mind that anyone who has a colorable claim of bias under Caperton has surely already filed a motion for recusal under state law. This ruling merely adds a new argument to their motion and, perhaps, gives them a basis to file a cert petition after their state appeals are exhausted. Big deal.
6.8.2009 12:40pm
David M. Nieporent (www):
Look, the fact is that the Due Process Clause was fully intended to protect against ANY sort of fundamental unfairness in the judicial process.
And yet the Kennedy majority expressly disclaims any attempt to inquire into actual unfairness, on the grounds that an "objective" test is needed.... and then it proceeds to utterly fail to provide any sort of objective test.
6.8.2009 12:41pm
ohwilleke:
The opening up a can of worms argument of the dissent is not too persausive.

First, neither the federal courts, where judges are appointed, nor the many state courts that have appointed judges (particularly at the state supreme court level, which is the only layer at which federal courts would directly intervene), are impacted at all by this rule.

Second, the "flood gates" cases like 1983 cases and criminal cases, almost never involve major campaign contributors to judges who win their cases.

Third, it only applies to cases imminent or pending at the time of an election campaign, which means that issue disappears after a couple of years on the bench for a judge.

Fourth, it only applies in close cases -- not many cases are decided by a single vote.

Fifth, it applies only when the contributor is personally financially interested in a particular case, not simply financially interested in a class of cases not including the one in question.

Sixth, the vast majority of judicial elections are utter landslides with trival campaign expenditures.

Yes, it may add a new argument to a litany of arguments often made that rarely prevail on appeal (8th Amendment in non-capital cases anyone, unreasonable within guideline sentencing decisions by federal judges, 2nd Amendment sentencing cases), but so be it. The question is how much serious uncertainty the suit creates. I suspect not much.

The bigger impact in the long run may be the argument that arbitration agreements that effectively allow one party to choose a decision maker without the consent of the other are unconstitutional.
6.8.2009 12:46pm
Seamus (mail):

So participation by John Marshall (and writing the opinion) in Marbury v Madison violated due process, as the litigation arose because Secretary of State John Marshall left Marbury’s commission in his desk when he left the Adams administration?



By today's standards, sure.
6.8.2009 12:52pm
Pyrrho:
I'm a little surprised by the praise of Roberts' dissent. A laundry list of difficult considerations that will arise in these cases is not a persuasive legal argument. It may surprise the Chief Justice to know that judges every single day make difficult decisions that require them to weigh many difficult considerations. This is why the job requires judgment. The fact is, judges weigh those exact considerations every single day - the issue is only whether the judge does it himself/herself or the Supreme Court does it. These recusal motions are filed all the time; judges frequently weigh whether they should or should not sit on a case. Furthermore, it's not like their decision can be appealed to a district court or court of appeals - the only avenue is the U.S. Supreme Court. And I hardly think the Supreme Court is going to take more cases like this unless they have similarly egregious facts. In 99.9% of the cases, the end decision-maker is going to be the same as it always was - the judge who decided whether or not to recuse.
6.8.2009 12:52pm
David M. Nieporent (www):
This seems remarkably silly to me. People base their perception of bias in the judiciary on the number of motions that get filed alleging bias? Since when?
A litigant may base his perception of bias on his firsthand observation that the judge made lots of rulings that the litigant dislikes. But what is the public going to base their perception of bias on? How about based on the number of times they read about accusations of bias?

Bear in mind that anyone who has a colorable claim of bias under Caperton has surely already filed a motion for recusal under state law. This ruling merely adds a new argument to their motion and, perhaps, gives them a basis to file a cert petition after their state appeals are exhausted. Big deal.
It is a big deal if one is a litigant, denied finality by yet another attempt to federalize state law.

And you misread the incentives. In the past, one had to have more than a "colorable" claim of bias to file a motion for recusal; every lawyer knows that one doesn't make such a motion except in extremis, because of the possible backlash if said motion fails. But now, here, one can get a whole 'nother bite at the apple, after the case is over and one knows the outcome.
6.8.2009 12:58pm
Anderson (mail):
Fourth, it only applies in close cases -- not many cases are decided by a single vote.

So, we don't know whether a judge should've recused until *after* the court's decision issues?

That's ... interesting.

Sixth, the vast majority of judicial elections are utter landslides with trival campaign expenditures.

In Mississippi, at least, the trend has been to see a LOT more $$$ in appellate-court races. I don't foresee this trend's changing. The business community has a very strong interest in electing certain kinds of judges; the plaintiffs' bar has a very strong interest in electing different kinds of judges.
6.8.2009 12:59pm
David M. Nieporent (www):
ohwilleke: you seem remarkably confident about what the decision "only applies to," without much basis for said confidence. Certainly one might try to distinguish some of those situations from Caperton, but there's nothing in the holding that would actually limit its application to those situations. Who says, e.g., that it only applies when the case is pending during the election?
6.8.2009 1:02pm
Cato The Elder (mail):
Can I get a link to the dissent? I can't find it.
6.8.2009 1:02pm
Cato The Elder (mail):
Never mind, they're in the same document.
6.8.2009 1:03pm
Seamus (mail):
The comparison with Bush v. Gore seems apt. In both cases, there was an situation that the Supremes felt obliged to correct, with an unfortunate lack of scrupulosity about the legal niceties of how they got to the right outcome. Talk about hard cases making bad law.

(Funny, though, how people seem to support the decision in one case and oppose in in the other, depending on whose political ox is getting gored.)
6.8.2009 1:05pm
FlimFlamSam:
Seamus,

I disagree with your shot re Bush v. Gore. In Bush v. Gore, the Rehnquist-Scalia-Thomas concurrence gets it exactly right, and that is that the Florida Supreme Court has no role to play in striking down or changing legislative mandates based on the Florida Constitution. The Florida legislature absolutely has plenary authority under the U.S. Constitution to declare the method for elector election. Stop assuming that conservatives by-and-large preferred the Kennedy-O'Conner majority opinion; we did not.
6.8.2009 1:09pm
levisbaby:
Wait, so you meant that I can't spend $3 million to elect a supreme court justice of my choosing when I have a case pending before the court?

What about _my_ due process rights? That's a lot of money to spend not to get anything!
6.8.2009 1:10pm
levisbaby:
Oh, and I just love the first part of Robert's opinion: "There is a 'presumption of honesty and integrity in those serving as adjudicators.' Withrow v. Larkin, 421
U. S. 35, 47 (1975)."

Roberts dissent is a joke.
6.8.2009 1:15pm
[insert here] delenda est:
I thought the two dissents were fantastic, especially Roberts' concluding paragraphs. Also if you pay attention he cites a particular justice frequently, anyone care to guess which?

And the Halper example is triple-precious judicial skewering.
6.8.2009 1:26pm
Soronel Haetir (mail):
Pyrrho,

If those problems were addressed in the majority perhaps the dissent would be less valid, but Kennedy just hand waves them away.
6.8.2009 1:30pm
tank treads and ooloong tea:
It may have been 5-4 but the Chief = win.

AMK was AMK being Kennedy-esque again, cavalier with precedent, unconcerned with creating a load of much for the lower courts to clear up, and generally very much confused and not in the least inclined to address the points raised in dissent. But he has 4 reliaberal votes behind him so they pinch their noses and indulge his poor lawyering as long as it reaches the right result. There's something horribly blind and philosophically naive about some of his opinions that I can't quite put a finger on. A preference for muck and confusion over coherence and clarity that can only be described as "judicial hand-waving." Ugh.
6.8.2009 1:32pm
tank treads and ooloong tea:
Looks like Soronel and I had the same thought at about the same time. Spooky.
6.8.2009 1:33pm
levisbaby:
The more you read of the Roberts dissent, the more absurd it gets:


Blankenship only “contributed” $1,000 to theBenjamin campaign.

Moreover, Blankenship’s independent expenditures donot appear “grossly disproportionate” compared to other such expenditures in this very election. “And for the Sake of the Kids”—an independent group that received approximately
two-thirds of its funding from Blankenship—spent $3,623,500 in connection with the election. App.684a.

You see, Blankenship only contributed $1,000. The other "independent" organization just happened to contribute $3M or so of Blankenship's money.

What a coincidence!
6.8.2009 1:33pm
DrGrishka (mail):
Here's my question that I had ever since the case was granted.

Doesn't the just announced rule mean that whenever a big contributor has a case before the Court, the judges during whose campaign contributions were made must recuse, irrespective of whether the judge was supported or opposed by the contributor? In other words, suppose Justice Benjamin had not prevailed, and instead, the incumbent won. Wouldn't the same problem (just in reverse) arise? Wouldn't there be an appearance that the incumbent against whom the contributor campaigned is now "out to get" the contributor? And if so, doesn't that make ANY contributions of any significant size to judicial elections highly problematic?!
6.8.2009 1:43pm
pjohnson (mail):

First, neither the federal courts, where judges are appointed, nor the many state courts that have appointed judges (particularly at the state supreme court level, which is the only layer at which federal courts would directly intervene), are impacted at all by this rule


The largest and most litigious state, California, elects its judges at all levels (although appellate judges usually are appointed, then stand for a confirmatory vote by the public later). According to the Natioanl Center for State Courts, quoting a 1998 ABA study, "Of the 1,243 state appellate judges, 1,084, or 87 percent, stand for some form of election, and 659, or 53 percent, stand for contestable election. Of 8,489 trial court judges (general-jurisdiction courts), 7,378, or 87 percent, stand for some form of election, and 6,560, or 77.3 percent, stand for some form of contestable election. However, the actual number of judges initially elected may be lower than these percentages suggest--many midterm elective judicial vacancies are filled by appointment before judges face voters at the polls."

In any case, you seem to think that the new rule applies only to appellate judges. Nothing in the opinion suggests that to be the case -- indeed, the precedents on which the Court relied both involved trial judges -- and there likely will be innumerable motions to recuse trial judges based on campaign contributions.
6.8.2009 1:44pm
AF:
I question a dissent that fails to cite the majority's best precedent. See Ward v. Monroeville, 409 U. S. 57 (1972).

This case strikes me as a pretty straightforward and sensible extension of the principle stated in Monroeville : that judges must recuse when they have an indirect but significant financial stake in the outcome.
6.8.2009 1:47pm
lulz:
"Oh, and I just love the first part of Robert's opinion"

Citing Byron White in Withrow v. Larkin. White's words, not his. I guess they were both joking!

Take a hike, "levisbaby."
6.8.2009 1:48pm
AF:
Doesn't the just announced rule mean that whenever a big contributor has a case before the Court, the judges during whose campaign contributions were made must recuse, irrespective of whether the judge was supported or opposed by the contributor?

Only if a litigant in a case that was pending during the election donated more than anyone else by multiple factors.
6.8.2009 1:50pm
D.A.:
The people raving over Roberts' dissent must not think about the law very much. If the presence or number of questions raised by every judicial decision were enough to argue against the issuance of that decision, nothing would ever get done.
6.8.2009 1:50pm
Steve:
In the past, one had to have more than a "colorable" claim of bias to file a motion for recusal; every lawyer knows that one doesn't make such a motion except in extremis, because of the possible backlash if said motion fails. But now, here, one can get a whole 'nother bite at the apple, after the case is over and one knows the outcome.

Strange, I don't see where the decision suggests that you can bring a federal claim without even having made a motion to recuse before the state court.

I think you guys are getting a little too worked up with the parade of horribles here. It's like you inhabit a place where we can't even entertain meritorious claims because someone might use them as an excuse to bring a non-meritorious claim later on. A really weird way to dispense justice, in my view.
6.8.2009 1:51pm
lulz:
D.A.,

And you miss the point. The Chief's long parade of questions was to illustrate the high likelihood that today's holding will be unworkable, and that we'll see something like Halper redux. The law has to be practical, cohere, and not be a load of muck. You must not have been to law school if you think the Chief's dissent is frivolous.

"It's like you inhabit a place where we can't even entertain meritorious claims because someone might use them as an excuse to bring a non-meritorious claim later on. A really weird way to dispense justice, in my view."

You mean like standing? Yeah, the Court's standing doctrine is really "weird," I guess.
6.8.2009 2:03pm
levisbaby:

And you miss the point. The Chief's long parade of questions was to illustrate the high likelihood that today's holding will be unworkable, and that we'll see something like Halper redux.

I was trying to recall if I have ever read a dissent that paraded 40 different hypotheticals like that.

Setting aside the fact that the court is supposed to be deciding he case before it, it seems that it would be pretty easy sport to reel out a few dozen hypos like that anytime that you disagreed with the majority.
6.8.2009 2:06pm
mooglar (mail):
I don't see how anyone can find persuasive Roberts' laundry list of "Well, what if this? And what if this? And... what if this, huh? Did you think about that?" The question at hand seems to me to be, was Caperton's right to due process violated by the case being heard by a judge who the defendant knew would hear the case upon appeal and therefore spent millions of dollars to help elect?

It seems to me that Roberts wants to say "no" based on facts that might happen someday in some other case, without reaching a conclusion on the facts of this particular case. And I have a hard time lining this up with his supposed "calling balls and strikes" judicial philosophy. Isn't this the equivalent of watching a pitch, and then saying, "Well, if I call that a strike, then maybe, someday, in some other game, there will be problems. So, no strike." How does that address if it is a strike or not? And if it is a strike, is Roberts therefore arguing that a judge's job is, literally, to call balls and strikes, but not to actually, you know, call strikes strikes and balls balls? Just as long as you make a call, any call, you've done your job?

I mean, come on. Some commenters are really stretching it on this one. The whole, "Massey didn't contribute to the judge's campaign, he just ran independent ads, so, no bias!" thing is transparent and dumb. Haven't any of you ever heard of plausible deniability? I am going to assume here that Massey's CEO isn't an idiot and therefore knew that if he directly contributed to the judge's campaign it would be clear bias and the judge would have to recuse or be forced to. So, once again, not being an idiot, he ran attack ads against the judge's opponent, so he could pretend later, "Oh, I just didn't like that other guy. But I wasn't supporting this guy." Uh-huh. That and five bucks will buy you a cup at Starbucks.

I mean, are those making this argument really claiming that this judge believed that line? Imagine that you are running for office and someone pays $3 million dollars in ads against your opponent. There isn't the least chance you'd think, maybe, the guy did it to help you? There isn't the least chance you'd feel extremely grateful? There isn't the last chance that you wouldn't think, "Hmmm. Funny that he hates that other guy so much. I guess he just really, really cares about the Supreme Court in this State out of the goodness of his heart." You wouldn't feel in the least bit obligated?

And you wouldn't feel even the slightest obligation to the contributor when the case came before you? You wouldn't feel at all like you owed this guy something? You'd be so absolutely sure that you wouldn't be influenced that you should hear the case?

In any case, while fuzzy rules are distasteful, and in some instances are vastly unfair and wrong, in some instances there just isn't any way to make that bright line rule without leaving too many legitimate grievances by the wayside. I'm pretty sure Kennedy's thinking went something like this: "If a guy spending millions of dollars to get a guy elected to the court that will hear his appeal doesn't present an obstacle to due process, then what the hell does?" It might be hard to define the exact line, but that doesn't mean that there's absolutely no way to tell if you're way on one side of it or not. I mean, there's no bright line where everyone agrees the Oort Cloud ends, but if you're orbiting Canopus, we can be pretty sure we're outside it, even without that bright line. And five of the justices, in this case, agreed.
6.8.2009 2:09pm
DrGrishka (mail):
AF,

Let's take this case as the beginning of the discussion. Let us suppose that all else is the same except the election results. In my hypothetical, Justice Benjamin lost the election. Does it then mean that the previous Justice Warren McGraw (who won re-election in my hypothetical) would also not be eligible to sit on this case? And if so, isn't this simply a backhanded way to impose spending limits on judicial campaigns (the very limits that the legislature of West Virginia has seen fit not to enact?)
6.8.2009 2:10pm
maddarter (mail):
Anon321 mostly beat me to the punch. If ever we wanted proof that policy is a factor in appelate courts including the Supreme Court, this could be exhibit A.

The 4-person dissent argues mainly policy -- that there is no well-defined rule stated by the majority, and that this case will cause lots of litigation. If one were to decide we should look ONLY at the due process clause and conclude that it has been violated, should it really matter at all that it could lead to more cases, even if many are frivolous? And yet such concerns have been expressed many times in appellate cases.
6.8.2009 2:13pm
AF:
Let us suppose that all else is the same except the election results. In my hypothetical, Justice Benjamin lost the election. Does it then mean that the previous Justice Warren McGraw (who won re-election in my hypothetical) would also not be eligible to sit on this case?

No, because the litigant didn't give Justice McGraw any money.
6.8.2009 2:13pm
DrGrishka (mail):
AF,

But why does that matter? The SCOTUS announced test is whether under "realistic appraisal of psychological tendencies and human weakness,” the interest “poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.” Wouldn't sitting on a case of someone who spent millions of dollars against you "pose[] such a risk of actual bias or prejudgment"?
6.8.2009 2:20pm
Anderson (mail):
I'm pretty sure Kennedy's thinking went something like this: "If a guy spending millions of dollars to get a guy elected to the court that will hear his appeal doesn't present an obstacle to due process, then what the hell does?"

He knew it when he saw it.

I think both sides are right. It passes belief that receiving millions from a party litigant doesn't meet the recusal standard. And yes, this opens several cans of worms that we will see litigated for years to come.

The Roberts' dissent's main problem is that it identifies the cans of worms, but it doesn't provide any plausible reason why failure to recuse wasn't improper here. The justice of the case, not the policy consequences, ought to play the principal role in deciding the case.

But, as for policy: If electing judges causes a world of trouble, then states are free to move away from electing judges. Perhaps a nudge in that direction was a side effect of the majority's opinion?
6.8.2009 2:21pm
JonC:

No, because the litigant didn't give Justice McGraw any money.


True, but as Bradley Smith and Jeff Patch noted in their op-ed on the case several months ago:


Wouldn't [McGraw] be biased against Massey? (Mr. Blankenship's ads, Justice McGraw told the New York Times, "absolutely destroyed" him and made him "embarrassed to go out in public.")
6.8.2009 2:23pm
AF:
Wouldn't sitting on a case of someone who spent millions of dollars against you "pose[] such a risk of actual bias or prejudgment"?

Wouldn't [McGraw] be biased against Massey?

Not necessarily. Judges are publicly attacked all the time. You can't force a judge's recusal by attacking him, whether in a campaign or otherwise.
6.8.2009 2:28pm
JonC:

I think both sides are right. It passes belief that receiving millions from a party litigant doesn't meet the recusal standard.


As the Roberts dissent at 13 points out, neither Blankenship nor his campaign "receiv[ed] millions from a party litigant." This point keeps getting glossed over in the debate. Other than Caperton's $1,000 direct contribution to Blankenship's campaign, all the donations in question went to independent (i.e. non-candidate-controlled) groups.


The Roberts' dissent's main problem is that it identifies the cans of worms, but it doesn't provide any plausible reason why failure to recuse wasn't improper here.


The issue, though, isn't "why failure to recuse wasn't improper." It's whether it was a violation of the Due Process clause. As Roberts explains, the Court had only previously recognized two scenarios in which failure to recuse rose to the level of a DP violation. One might think the burden of persuasion, so to speak, would not be on Roberts but on those arguing for a new, third such circumstance.
6.8.2009 2:33pm
DrGrishka (mail):
AF,

Why doesn't that argument flow both ways? "Judges are publicly praised/supported all the time. You can't force a judge's recusal by supporting him, whether in a campaign or otherwise."? I really fail to see the difference.

The entire logic of AMK's opinion can be boiled down to: "Benjamin, even if honest, could be swayed to rule for Massey simply because of human nature to help out those who helped you out." It seems to me that that logic applies equally well in reverse, to wit "McGraw, even if honest, could be swayed to rule against Masset simply because of human nature to exact revenge on those who tried to hurt you."
6.8.2009 2:33pm
JonC:
Apologies-- that should be "Benjamin nor his campaign," "Benjamin's campaign," and "Blankenship's $1,000 direct contribution" in my post above.
6.8.2009 2:37pm
Oren:

So, we don't know whether a judge should've recused until *after* the court's decision issues?

Whether the judge *should* have recused himself is something we know beforehand.

Whether his failure to do so rises to the level of a denial of due process, however, we can't know until after the vote comes out.


The Roberts' dissent's main problem is that it identifies the cans of worms, but it doesn't provide any plausible reason why failure to recuse wasn't improper here.

This is a silly characterization of his position. Roberts acknowledges that the refusal to recuse was improper, he just doesn't believe that it is an impropriety that the SCOTUS can remedy.

There are distinct questions here about the nature of the wrong and the availability of a remedy.
6.8.2009 2:39pm
AF:
I really fail to see the difference.

There are many differences between support and opposition.

Most importantly, recusal based on a party's opposition to the judge invites strategic behavior to force recusal.

I am sure you will reply that litigants can strategically support judicial candidates to force recusal. But there is no suggestion that occurred here. If there was, the case would have gone the other way.
6.8.2009 2:41pm
dmv (www):
For those whining about how standardless the decision was:


We con­clude that there is a serious risk of actual bias-—based on objective and reasonable perceptions-—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

That was from page 14. The Court then looks at the facts. Blankenship donated the statutory maximum of $1,000. But he also funded a political organization, "And For The Sake Of The Kids," giving the organization $2.5 million. That $2.5 million amounted to more than 2/3rds of the entire amount of money the organization raised. Blankenship also spent $500,000 on "independent expenditures. The total of $3 million Blankenship spent amounted to more than all other Benjamin supporters combined spent. Blankenship spent three times more money than Benjamin's own campaign committee spent. The party seeking recusal claimed that Blankenship spent $1 million more than the total amount of money spent by both candidates' campaign committees combined.

Another thing to consider is that when the Supreme Court of W.V. agreed to re-hear the case, after it heard it the first time, 2 justices recused themselves. Justice Benjamin was acting chief justice for the rehearing and selected the two replacement justices.

But that's not all.


The temporal relationship between the campaign con­
tributions, the justice’s election, and the pendency of the
case is also critical.

Page 15. The jury verdict for $50 million in damages against Blankenship's company--Blankenship was chairman of the board and the principal corporate officer--was entered prior to the judicial elections. The next step, after post-trial motions, was W.V.'s Supreme Court, for which Benjamin was running. So Blankenship was making such (relatively) huge contributions to a Supreme Court candidate at the same time that his case was pending appeal to the Supreme Court.

Justice Benjamin refused to recuse and issued four opinions in which he argued that his refusal was justified. In all of them, Benjamin said that the petitioner for recusal had not shown any actual bias.

Justice Benjamin reiterated that he had no “‘direct,
personal, substantial, pecuniary interest’ in this case.’”

Page 5. Justice Kennedy shows that the Supreme Court's precedents require a more searching inquiry than one only for "direct, personal, substantial, pecuniary interest." The Monroeville case had held that direct, personal pecuniary interest wasn't the applicable standard for recusal. "Due process 'may sometimes bar trial by judges
who have no actual bias and who would do their very best
to weigh the scales of justice equally between contending
parties.'" (Citation to Murchison omitted). Thus, Kennedy concludes:

We find that Blankenship’s significant and disproportionate influence—-coupled with the temporal relationship between the elec­tion and the pending case—-“‘“offer a possible temptation to the average . . . judge to . . . lead him not to hold the balance nice, clear and true.”’” Lavoie, 475 U. S., at 825 (quoting Monroeville, 409 U. S., at 60, in turn quoting Tumey, 273 U. S., at 532).

Tumey was a 1927 case. The later cases from the 1970s had made it clear that the sort of direct interest that was involved in Tumey wasn't the only sort of interest requiring recusal. Yet, Justice Benjamin had only argued that a direct type of interest, a la Tumey unmodified by later cases, was relevant to the recusal inquiry, even in spite of the fact that W.V.'s own rules on judicial ethics say, "A judge shall avoid impropriety and
the appearance of impropriety." W.V.'s Code of Judicial Conduct and commentary on Canon 2A is the same as the ABA's Model Code. Under that standard, the test for impropriety, as Kennedy points out on page 18, is "whether the conduct would create in reasonable minds a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality and compe­tence is impaired."

Given all that, the only really surprising thing about this case is that 4 Supreme Court justices dissented.
6.8.2009 2:43pm
Oren:

Other than Caperton's $1,000 direct contribution to Blankenship's campaign, all the donations in question went to independent (i.e. non-candidate-controlled) groups.

This is an elevation of form over function.

The man spent $3M to influence the election. Whether that influence came from direct contribution to the campaign, contribution to "independent" groups, buying TV spots, paying for pamphleteers or any other method that effectively accomplishes the same goal cannot possibly matter.
6.8.2009 2:45pm
July (mail):
The Court dispensed justice in this case. And to those who think that Justice Kennedy did not properly address the dissent's points, they either (1) did not read Kennedy's opinion thoroughly or (2) think that rebuttal must always be on a footnote.
6.8.2009 2:45pm
David M. Nieporent (www):
You see, Blankenship only contributed $1,000. The other "independent" organization just happened to contribute $3M or so of Blankenship's money.

What a coincidence!
Sigh. Reading is fundamental. Roberts wasn't pretending that Blankenship didn't spend the money; he was pointing out that Blankenship didn't contribute it. The other independent -- no scare quotes -- organization didn't contribute anything. Rather, it spent the money independently. That's what "independent" means.
6.8.2009 2:49pm
dmv (www):

Sigh. Reading is fundamental.

Funny that you say that.

Reading Roberts' list of questions, I got the distinct impression that he hadn't read the majority's opinion in the case.
6.8.2009 2:50pm
Oren:

The other independent -- no scare quotes -- organization didn't contribute anything. Rather, it spent the money independently. That's what "independent" means.

Yes, they spent their money independently in furtherance of the same goal, which is functionally indistinguishable from a direct contribution.

The insistence that conflicts of interest magically disappear when you incorporate some fig-leaf corporation to do what you cannot yourself do personally is one of the more incomprehensible assertions of the judicial formalists.
6.8.2009 2:52pm
David M. Nieporent (www):
This case strikes me as a pretty straightforward and sensible extension of the principle stated in Monroeville : that judges must recuse when they have an indirect but significant financial stake in the outcome.
But Benjamin had no financial stake in the outcome. He got the same indirect support no matter how he voted.

----

This is an elevation of form over function.
A significant one, that our campaign finance jurisprudence has recognized for 33 years.

So, we don't know whether a judge should've recused until *after* the court's decision issues?

Whether the judge *should* have recused himself is something we know beforehand.

Whether his failure to do so rises to the level of a denial of due process, however, we can't know until after the vote comes out.
That doesn't make sense. If Benjamin voted for Caperton, then there was no denial of due process, but if he voted for Massey, then there was? The denial of due process was the vote? That can't be, any more than we wait to see whether a defendant is acquitted to decide whether a Brady violation was a violation of due process. What I think you mean is that if the vote comes out the other way, it's harmless error, not that it isn't a violation of due process.
6.8.2009 3:05pm
Soronel Haetir (mail):
I actually think given the facts of this case that McGraw would have failed the test even worse if he had won the election. As has been pointed out there were other forces trying to oust the encumbant, the local newspapers as an example.

Far easier to retaliate against a part actually in front of you who tried to get you kicked out of your position and spent a hell of a lot of money to do it than people not in front of your court. I also see that as a different beast from general criticisms of courts in that plenty of people complain about courts but few put huge resources into trying to target particular judges.
6.8.2009 3:07pm
Dilan Esper (mail) (www):
JonC:

It's all about the Benjamins, isn't it?
6.8.2009 3:08pm
Jim N:
Caperton moved a third time for disqualification, arguing that Jus­tice Benjamin had failed to apply the correct standard under West Virginia law—i.e., whether “a reasonable and prudent person, knowing these objective facts, would
harbor doubts about Justice Benjamin’s ability to be fair
and impartial.” Id., at 466a,
6.8.2009 3:09pm
dmv (www):

I actually think given the facts of this case that McGraw would have failed the test even worse if he had won the election.

Yet this assumes that McGraw would not have recused himself.

Others did recuse in this case. One justice recused because pictures of him vacationing with Benjamin emerged. Yet Benjamin himself didn't recuse.

I'm totally baffled that this is not an obvious case for some.
6.8.2009 3:10pm
David M. Nieporent (www):
Yes, they spent their money independently in furtherance of the same goal, which is functionally indistinguishable from a direct contribution.

The insistence that conflicts of interest magically disappear when you incorporate some fig-leaf corporation to do what you cannot yourself do personally is one of the more incomprehensible assertions of the judicial formalists.
The issue is not that he "incorporated some fig-leaf corporation to do what you cannot yourself do personally." The issue is that the "fig-leaf corporation" didn't do what you claimed either. The "fig-leaf corporation" didn't give any money to Benjamin.

Independent expenditures are not "functionally indistinguishable from" direct contributions.

Me giving you $500 and saying, "Spend this on your favorite charity" is not the same as me giving $500 to a charity that I personally think you might have approved of. Me putting out an ad criticizing Obama is not the same as giving money to McCain so that he can put out an ad criticizing Obama.
6.8.2009 3:15pm
David M. Nieporent (www):
Others did recuse in this case. One justice recused because pictures of him vacationing with Benjamin emerged. Yet Benjamin himself didn't recuse.I'm totally baffled that this is not an obvious case for some.
The issue here is not whether Benjamin should have recused himself -- a question of WV state law. The issue here is what the U.S. Constitution requires. I'm depressed -- but certainly not baffled -- that many people don't understand this distinction.
6.8.2009 3:18pm
Dilan Esper (mail) (www):
A significant one, that our campaign finance jurisprudence has recognized for 33 years.

David, as I noted earlier, the reason our campaign finance jurisprudence recognizes this distinction between form and substance is because it is dealing with FREE POLITICAL SPEECH. In other words, we don't want fuzzy lines and gray areas and balancing tests when the result can be to chill political speech.

In this case, the issue is judicial recusals, not free speech. Nothing in the Constitution guarantees the right of a judge to sit on a particular case, so the interest that is impaired by a fuzzy rule is quite a bit less important than the right of a person to engage in political speech.
6.8.2009 3:18pm
dmv (www):

The issue here is what the U.S. Constitution requires. I'm depressed -- but certainly not baffled -- that many people don't understand this distinction.

Two wholly independent responses:

(1) So you think that having a judge hearing your case, when state law required that judge's recusal, squares with due process? Do you think that an adjudicator who appears partial to one of the parties squares with the neutral tribunal requirement?

(2) Supreme Court precedent suggested otherwise.
6.8.2009 3:24pm
Anderson (mail):
Other than Caperton's $1,000 direct contribution to Blankenship's campaign, all the donations in question went to independent (i.e. non-candidate-controlled) groups.

Naivete, real or feigned, does not inspire confidence in one's ability to address the relevant issues of this case.
6.8.2009 3:32pm
David M. Nieporent (www):
So you think that having a judge hearing your case, when state law required that judge's recusal, squares with due process?
I think that the due process clause does not federalize state recusal law, whatever that state law requires.
6.8.2009 3:33pm
Oren:

[P]utting out an ad criticizing Obama is not the same as giving money to McCain so that he can put out an ad criticizing Obama.

Correct, they are not the same.

They are, however, functionally the same. The modifier 'functionally' here serves to indicate that while the actions themselves are different (as you point out) they both serve the same essential purpose -- influencing the election as to increase the probability that McCain will win.
6.8.2009 3:34pm
dmv (www):

I think that the due process clause does not federalize state recusal law, whatever that state law requires.

That's a cute way to dodge the second half of (1).

So I repeat:

Do you think that an adjudicator who appears partial to one of the parties squares with the neutral tribunal requirement?

I'm guessing you'd answer "yes." I'm guessing that you would only require proof of actual bias in order to implicate the Due Process Clause of the 5th or 14th Amendments.
6.8.2009 3:37pm
Steve H (mail):

Me putting out an ad criticizing Obama is not the same as giving money to McCain so that he can put out an ad criticizing Obama.


As a practical matter, what's the difference? Either way, McCain gets the benefit of an ad criticizing Obama.
6.8.2009 3:38pm
Oren:

I think that the due process clause does not federalize state recusal law, whatever that state law requires.

No one has claimed that it does. Due Process does incorporate the basic elements of common law -- a fair trial in front of a neutral arbiter.
6.8.2009 3:38pm
Oren:

The issue here is what the U.S. Constitution requires. I'm depressed -- but certainly not baffled -- that many people don't understand this distinction [between US Constitutional law and WV Law]

As I understand it, no one has even remotely suggested anything to the extend that DP makes WV recusal law a Federal issue. The Federal DP is a minimum requirement of a fair tribunal, not an incorporation-by-reference of state law.

Also, David, you might also be quite depressed at the Federal and tax-court caselaw dealing with "functional analysis" of shell corporations and partnerships in which the corporate entity can be entirely ignored ("piercing the corporate veil" or "alter ego"). Those cases too, lack a clear bright line and are animating by the basic notions of equity.
6.8.2009 3:46pm
DrGrishka (mail):
AF,

What's the difference. If I spend money calling a judicial candidate all sorts of nasty names and run Willie Horton ads against him, why is it not reasonable to assume that that candidate whoudl he ultimately prevail, would kick me in court any chance he got?!
6.8.2009 3:51pm
ArthurKirkland:
Is there a consistent line of argument that supports restricting million-dollar punitive damages awards but not restricting million-dollar court-arranging contributions (other than "I prefer the party with the power, the money and the influence")?

This case does nothing to dispel Mr. Toobin's depiction of Justice Roberts.
6.8.2009 3:53pm
Anderson (mail):
The issue here is what the U.S. Constitution requires.

Right. And the Supreme Court has stated what the Constitution requires:

The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is “likely” to be neutral, or whether there is an unconstitutional “potential for bias.”

... Btw, Caperton misstates Mississippi's rules, which do not "require" recusal under similar facts, in so many words:

A party may file a motion to recuse a judge based on the fact that an opposing party or counsel of record for that party is a major donor to the election campaign of such judge. Such motions will be filed, considered and subject to appellate review as provided for other motions for recusal.
6.8.2009 3:57pm
[insert here] delenda est:

So you think that having a judge hearing your case, when state law required that judge's recusal, squares with due process?

Isn't that begging the question? If State law required recusal, then the Judge should recuse or the State's own tribunals should enforce State law.

I do struggle, as a non-American, to see why even a manifest lack of fairness (whether or not present here) requires Constitutionalisation of the question. The State is presumably competent to make and enforce its own rules. You have a fragmented common law so I am not sure how appeals to common law can help, let alone in the Supreme Court. All the more so since I am fairly sure that the dissent is correct in stating that the classic common law standards, albeit developed in a very different age, were quite narrow and would not have obliged recusal.

So what is wrong with saying that this falls short of the Constitutional standard, and thus is ultimately, and appropriately, decided by West Virginian courts?

Also, I don't think courts can ignore that most of the money went to an independent fund. Clearly an independent fund can hinder a candidate as much as help - imagine if a gay group had released tv spots praising Obama for his intention to liberalise gay relationships? Leaving aside that they would have been wrong, would this have generated in Obama feelings of warmth and reciprocity towards them? It is a formal standard, but it seems like the kind of formal standard that matters. There is a reason why friendship with the litigant is grounds for recusal but mere detached support is not 'friendship'.

NB: my country has a federal system but a single ultimate court of appeal and hence a unified common law. We also have generally more homogenous legislation than you. So maybe I am just not used to thinking about these things the right way.

PS: We also have no concept of electing judges. I think it is almost the worst part of your system of governance, below Sen Kennedy but slightly above Rep Murtha.
6.8.2009 4:01pm
Nunzio:
How would a wise Latina have ruled in this case? (Issue an unpublished decision)
6.8.2009 4:14pm
dmv (www):

I do struggle, as a non-American, to see why even a manifest lack of fairness (whether or not present here) requires Constitutionalisation of the question.

Because due process means, at least, the right to be heard before a neutral decisionmaker. Where neutrality is called into question, due process is implicated.
6.8.2009 4:20pm
Oren:

Isn't that begging the question? If State law required recusal, then the Judge should recuse or the State's own tribunals should enforce State law.

Sure. Independent of State law, however, are the requirements of the US Constitution.


The State is presumably competent to make and enforce its own rules.

Indeed. After the State rules are satisfied, however, one must also ensure that the requirements of the 5A/14A are also met. Saying that the State may make the rules does not lift from the State the obligation to provide due process.
6.8.2009 4:26pm
David M. Nieporent (www):
Right. And the Supreme Court has stated what the Constitution requires:

The inquiry is an objective one. The Court asks not whether the judge is actually, subjectively biased, but whether the average judge in his position is “likely” to be neutral, or whether there is an unconstitutional “potential for bias.”
Well, ipse dixit is fun, when you're on the Supreme Court.

As others above pointed out, if Benjamin's opponent had won, he should also have had to recuse himself by that standard. If $3M of spending to help me is supposed to make me "potentially" biased in favor of the spender, then $3M of spending to hurt me is also going to make me "potentially" biased, against the spender.

And as others also pointed out, this is basically know-it-when-I-see-it jurisprudence. Despite calling it "objective," there's no real "objective" test for a "potential" for bias.
6.8.2009 4:28pm
Oren:

So what is wrong with saying that this falls short of the Constitutional standard, and thus is ultimately, and appropriately, decided by West Virginian courts?

Again, you raise a red herring. Whether or not the process conforms with the Constitution has nothing whatsoever to do with WV law. Either the process is OK according to the 5A/14A or its not, entirely independently State law.

No Federal Court has ever, in my recollection, deferred to a State court in deciding the meaning of the US Constitution. No Court ever will. Whatever the Constitution means (and it might not require the result in this case), it means the same thing for all 50 States.
6.8.2009 4:29pm
David M. Nieporent (www):
I think that the due process clause does not federalize state recusal law, whatever that state law requires.

No one has claimed that it does. Due Process does incorporate the basic elements of common law -- a fair trial in front of a neutral arbiter.
Was there any showing here that these elements weren't in place?
6.8.2009 4:30pm
Oren:

Clearly an independent fund can hinder a candidate as much as help

That is a factual matter for the lower courts to decide, not a question of law. If during a Caperton motion (as I guess we are calling them), the party wants to assert that the independent expenditures were of harm, or maybe no benefit, they can make that case.


PS: We also have no concept of electing judges. I think it is almost the worst part of your system of governance, below Sen Kennedy but slightly above Rep Murtha.

Well, we agree there.
6.8.2009 4:31pm
Jon Roland (mail) (www):
This case raises the interesting question, is there a bright line separating due process and equity, or does due process subsume equity, at least to some extent?

My answer is that they substantially overlap, although there is a realm of equity that goes beyond due process, is largely fact-based, and does not lend itself to being treated as precedent.

Note that the Constitution makes federal courts courts of equity as well as of law, and requires due process, without defining it. The customary rough definition is that it contains two main elements: due notice and a fair hearing. That is not just fair in the application of law, but also fair in seeking justice.

However, equity is not supposed to give rise to precedent, certainly not binding precedent (which readers of my stuff know I generally oppose). It is peculiar to each case.

Equity must be consistent with law, but law doesn't cover all the details of every case. There is scope for discretion, although discretion can be abused, and the standards for abuse of discretion are a realm of law unto themselves.

There is, however, for this case a kind of bright line rule, from ancient tradition:

In dubiis, non præsumitur pro potentia. In cases of doubt, the presumption is not in favor of a power.

In this case, nonrecusal is the exercise of a power, the authority for which is in doubt. When in doubt, recuse or remove.
6.8.2009 4:36pm
Oren:

Was there any showing here that these elements weren't in place?

I think there was a very good case that the tribunal was not an impartial one.


And as others also pointed out, this is basically know-it-when-I-see-it jurisprudence. Despite calling it "objective," there's no real "objective" test for a "potential" for bias.

I agree there. I guess my general thought was that we elect judges to make judgment calls, not to mechanically regurgitate bright-line rules.

If the ambiguity makes moneyed interests (plaintiffs-attorneys, unions and corporations alike) less likely to jockey for influence in judicial elections, so much the better.
6.8.2009 4:36pm
ArthurKirkland:
IS there any way to square the Caperton dissent with the Bush v. Gore decision? More than once, while reviewing Justice Roberts' work in Caperton, I sensed that the Chief Justice had been recycling the dissent he wished he had had an opportunity to write in Bush v. Gore.

After reading Justice Scalia's dissent in Caperton, I will leave it to Scalia scholars to identify what might have changed his mind so substantially in eight years. (Or, perhaps the last line of Justice Scalia's dissent is a clue: "The answer is obvious.")
6.8.2009 4:42pm
Oren:
Arthur, Scalia hasn't changed his mind at all -- he was for bright-line rules before and he is now. I disagree, but he's damn consistent about it.
6.8.2009 4:49pm
Eli Rabett (www):
Didn't John Grisham do this first?


The precedent created by their case is what matters, and the company’s real objective is to make itself safe from similar attacks in the future. In order to arrange that, Krane needs the Mississippi Supreme Court. Another nuisance: Mississippi Supreme Court justices can’t simply be appointed. They have to be elected.

Now the stakes start to ratchet up. So a corrupt senator puts Krane’s greedy billionaire C.E.O., Carl Trudeau, in contact with Troy-Hogan, a mysterious Boca Raton firm that specializes in elections. There is no Troy. There is no Hogan. There is no record of the nature of the business conducted by this privately owned corporation, which is domiciled in Bermuda. For two separate fees, one acknowledged and the other, larger one delivered quietly to an offshore account, Troy-Hogan will do its magic. “When our clients need help,” says Barry Rinehart, Troy-Hogan’s main power player, who radiates the same expensive sartorial confidence that Trudeau does, “we target a Supreme Court justice who is not particularly friendly, and we take him or her out of the picture.”

6.8.2009 5:02pm
[insert here] delenda est:
Oren:

If during a Caperton motion (as I guess we are calling them), the party wants to assert that the independent expenditures were of harm, or maybe no benefit, they can make that case.

Maybe so. But it seems reasonable to me that the opposite be the case - ie that your Constitutional due process rule derive its prima facie standard of a fair hearing from the common law presumption that the jduge is impartial. In fact, I know someone above has mocked the quote about presuming judicial integrity, but that really is a bedrock item of the common law (and indeed any legal system).

After all, if there is evidence of the contrary (ie collusion b/n the Judge and the third party or the donor, or actual circumvention of any kind) then you have prima facie evidence of a personal direct financial interest, don't you? in which case the commmon law and constitutional standards (I think I am correct in stating the they are the same for these purposes) are satisfied.

In effect we have different views on the burden of proof. I think that the minority is right that the burden of proof is on those who would allege judicial partiality.

I can see how people would disagree, ie the majority describe this as exceptional, extreme etc. My problem is that there is no more than a smell test, really, which leads in my view to seriously eroding the presumption of judicial integrity. Ie, for you, the Judge's impartiality is an objective factual matter per se, to be determined in each case, whereas for me, s/he is impartial unless there are facts subjectively justifying consideration of his impartiality. And yes I don't think the majority realise how many apeals will raise this.

Jon Roland, does anyone still believe that equity should not give rise to precedent? Sure the outcome of a particular case is not precedential, but isn't equity administered in almost all cases according to relatively settled categories and rules, ie precedents?
6.8.2009 5:06pm
Oren:

In effect we have different views on the burden of proof. I think that the minority is right that the burden of proof is on those who would allege judicial partiality.

I agree that they bear the burden, just not such a high one as to require proof that the judge acted with intentional subjective partiality. That's an impossible burden (and you know it).


I can see how people would disagree, ie the majority describe this as exceptional, extreme etc. My problem is that there is no more than a smell test, really, which leads in my view to seriously eroding the presumption of judicial integrity. Ie, for you, the Judge's impartiality is an objective factual matter per se, to be determined in each case, whereas for me, s/he is impartial unless there are facts subjectively justifying consideration of his impartiality.

You say "smell test", I say "requiring judgment". What's objective here is that any reasonable person would have strong reason to suspect that Benjamin is not an impartial arbiter.


And yes I don't think the majority realise how many apeals will raise this.

That's an irrelevant policy matter. It is not for the courts to short circuit due process because it would create more work for them. Quite the opposite, I would expect that delivering a fair hearing in front of an impartial tribunal requires a lot more appeals/hearing than a corrupt process.
6.8.2009 5:26pm
Oren:
Also, I support your contention that the judge is presumed impartial until facts prove otherwise. The facts in this case, on the other hand, almost certainly do prove otherwise.
6.8.2009 5:26pm
Steve H (mail):

Was there any showing here that these elements weren't in place?


Yes. Because when the judge has been the beneficiary of $3 million of a litigant's largesse, the proceeding is not fair.


I guess my general thought was that we elect judges to make judgment calls, not to mechanically regurgitate bright-line rules.


Which is why the lady with the blindfold is holding scales, and not a ruler or a calculator.
6.8.2009 5:29pm
Pyrrho:
And yes I don't think the majority realise how many apeals will raise this.
How many? Litigants are already free to make motions for recusal. They do it sometimes, and it has happened in my home state of Wisconsin in several notable instances. Nonetheless, it is generally a stupid idea that will not work and will irritate the judge. Now, if litigants actually have a reasonable chance of gettig a reversal, I'm sure these kinds of appeals will be common. But the appeals only go to the SCOTUS - do you think they are going to take many of these? So what they get some more appeals - denials of cert hardly have much impact on the Court's overall workload. If you could appeal to district court or the court of appeals, this might be a legitimate argument. But the SCOTUS was very careful to point out how extraordinary this case was. I don't see there being any extra tolling of judicial resources from this.
6.8.2009 5:45pm
ArthurKirkland:
What was the bright-line rule in Bush v. Gore whose contribution to the law required the Supreme Court to trample the Florida Supreme Court?

And why did the Court expressly disclaim precedential effect with respect to that indispensible bright-line rule.

And how did Bush v. Gore's rough weighing of oranges differ from that in Caperton, in cause or effect?

Or, for that matter, how does the line-drawing (based on "elementary notions of fairness," at least in the BMW case that found a new right for well-heeled wrongdoers) in a punitive damages case differ from that in a judge-buying case? The Caperton majority appears to have established that a $3 million crusade against a judge a litigant dislikes and wishes to avoid is over the line, much as anything beyond an arbitrary 1:1 (for putting a drunk at the helm of the Exxon Valdez) was ruled to be excessive.

What differences explain the varying approaches to fairness, to second-guessing state decisions, to extreme cases, to concerns about bright-line rules?

As Justice Scalia has been known to observe: "The answer is obvious."
6.8.2009 6:03pm
Sol:
Robert's laundry list is just bad writing. It's boring. Did he phone this in?
6.8.2009 6:03pm
SamW:
He. I cannot wait for someone to parody, Robert's list. This could go down as one of the most amusing rhetorical flourishes, evah!
6.8.2009 6:07pm
Bob from Ohio (mail):

But maybe, just maybe, the West Virginia courts will start giving litigants fighting entrenched business interests a fairer shake.


Caperton and Harman Mining are hardly Little Nellie.

They operate smaller coal mines than Massey but can fairly be described as "entrenched business interests" themselves.

This is the S/C siding with rich people against richer people.
6.8.2009 6:23pm
levisbaby:


They operate smaller coal mines than Massey but can fairly be described as "entrenched business interests" themselves.

IIRC Harman Mining went BK, in part because of Massey's conduct.
6.8.2009 6:31pm
Public_Defender (mail):
Given the nuclear-war-on-the-judge nature of disqualification motions, lawyers have good reason to remain cautious about filing them. If you lose the motion, you're stuck with the judge you just dragged over the coals. That, in and of itself, is a significant deterrent. Plus, even judges who would tend to agree with you get ticked when you unfairly attack one of their colleagues, so the risk of an unfair disqualification motion can affect a lawyer's reputation and hurt his or her effectiveness.

That said, liberal disqualification rules create a new problem--selecting the replacement. That process is often more fraught with the appearance of bias than the process that led to the selection of the initial judge. That said, I think Justice Kennedy got this decision right, but not as obviously right as some claim.

The only easy part of this case is that Justice Brent B. Benjamin should have exercised enough common sense to voluntarily recuse himself. If it's clear that a litigant paid millions to get you elected to help his personal case, you should get off of that case. This is different from general position advocates (consumer lawyers v. business lawyers) because there is usually at least some balance in contributions. Further, pushing for one judge over the other based on general judicial philosophy is generally fair game in an election.

But here, an individual litigant spent millions trying to protect his personal legal interests. It's not too much to ask the judge to get off that litigant's case just to make a point that judges can't be bought. Justice Benjamin would have done himself and the WV judiciary a service by getting off the case voluntarily. His lack of judgment created a reasonable perception that a litigant purchased a result in a specific case. His lack of judgment also created a set of facts that let the US Supreme Court get involved.

Judge Benjamin may not have been responsible for one of his supporters, but he could have avoided all of this by showing some common sense good judgment.

As to the US Supreme Court case, I think it's a closer call than many of my liberal friends. Judges get campaign support all the time, and lawyers frequently appear in front of judges to whom they've given donations. The Chief Justice is right to worry about line drawing, but I think Kennedy did a good job at pointing out how extreme the facts are here.

Some of the Chief Justice's questions make sense in the abstract, but a little common sense (and a few years of actual litigation experience) will tell you that it would be counter-productive to demand recusal for a judge whose supporter wanted to elect a "tough on crime" judge (#9). Judges don't exactly quiver in their boots when the defense bar claims they are too "tough on crime."

[On a side note, you can tell from this opinion that the Chief was an advocate, and a good one.]

One odd aspect of the Chief Justice's dissent is that by raising the questions, he may give them more credence than they deserve. If the Chief Justice of the United States thinks a question is fair based on precedent, it's pretty much non-frivolous by definition.

As to all of the questions about what's "disproportionate," well, judges can make judgments. As professor Pildes points out in the piece several have linked to, judges deal with balancing tests all the time. Yes, we lawyers will sometimes push the limits of the decision, but judges will just have to make judgments about whether the future cases are as extreme as the Massey case. And if lower courts disqualify too liberally based on this case, the Supreme Court can grant cert to rein them in.


[As another side note, if anyone wants to see an all-too typical example of "child rapists" in our criminal justice system, especially our juvenile justice system, look at the case that Judge Benjamin's supporter cited. West Virginia v. [Smith], 215 W. Va. 132, 595 S.E.2d 289 (internal citation omitted). "The appellant in this case, Mr. [Smith], has lead a long and painful life. He endured a long history of sexual assault at the hands of two of his adult male family members, beginning when he was seven or eight years old. These assaults included oral sex, sodomy, mutual masturbation, and 'dry humping.' Mr. [Smith] was also sexually assaulted by one of his teachers for a period of four years. As a result of these attacks, Mr. [Smith] began acting out sexually against his younger half brother. As a result of this conduct, a delinquency petition was filed on February 28, 1997, when Mr. [Smith] was fifteen years old. . . ." Even the dissent, after noting that there were other alleged victims, admited that, "When confronted with his actions, Mr. [Smith] stated 'that's what people [do].'" In child sex abuse cases, the line between victim and offender is often overlapping.]

[And yes, I know that the name of the victim/offender is public record, but I won't further publicize it.]
6.8.2009 6:35pm
JonC:
@Anderson:


Naivete, real or feigned, does not inspire confidence in one's ability to address the relevant issues of this case.


One could say the same thing about making ad hominem attacks instead of addressing the substance of an argument in good faith. The statement was made that the candidate "receiv[ed] millions from a party litigant." Accusations of naivete aside, that statement is, as a factual matter, false. It matters because (1) misstating that Benjamin received millions from a litigant distorts the facts of the case to make them seem worse, and (2) as discussed in the Smith op-ed I linked above, for the past three decades the Court has consistently (before today at least) applied different substantive legal standards to the treatment of independent campaign expenditures as opposed to direct contributions.

Then again, maybe we can just write off the Court that decided Buckley and all the courts that have since applied it as just too naive to weigh in on these kinds of issues.
6.8.2009 6:45pm
Dilan Esper (mail) (www):
JonC:

Again, like David, you are missing the point about Buckley and campaign finance cases. The campaign finance cases rely on formal distinctions between contributions and independent expenditures BECAUSE THE RIGHT OF POLITICAL SPEECH IS SO IMPORTANT THAT WE NEED AN EXTREMELY BRIGHT LINE RULE TO AVOID A CHILL EFFECT.

In contrast, judges have no right to sit on the case. The worry that we might "chill" a few judges into unnecessary recusals is not nearly as large a concern. Thus, the need for bright line rules is less.

Campaign finance jurisprudence elevates form over substance because it has to in order to protect the First Amendment interests involved. That doesn't justify elevating form over substance in every other area of the law that touches on campaign contributions / expenditures.
6.8.2009 7:02pm
Bob from Ohio (mail):
Caperton didn't go bankrupt. He still had enough to contribute $20,000 to McGraw in 2004.

Think he would have filed a motion to recuse McGraw?
6.8.2009 8:41pm
byomtov (mail):
As a non-lawyer, I find Roberts' concern that the decision will bring "our judicial system into undeserved disrepute, and diminish the confidence of the American people in the fairness and integrity of their courts" utterly unconvincing.

Try this. Ask members of the public how they feel about a judge ruling on a $50 million case involving a litigant who spent $3 million getting him elected. What response do you think you would get, after the respondents stopped laughing? It's an incredible argument.

I think lawyers who agree with the dissent are suffering from some sort of professional blindness that prevents them from seeing what non-lawyers see at a glance. It was a denial of due process. Caperton wasn't going to get a fair hearing, (unless Benjamin is a saint, which I doubt). Come on, people. It's plain as day.
6.8.2009 8:54pm
pluribus:


So participation by John Marshall (and writing the opinion) in Marbury v Madison violated due process, as the litigation arose because Secretary of State John Marshall left Marbury’s commission in his desk when he left the Adams administration?



By today's standards, sure.


Whose life, liberty, or property was denied by Marshall's decision in Marbury?
6.8.2009 9:01pm
Pyrrho:
Umm...Marbury's, unless I misread the case the last 50 times.
6.8.2009 9:44pm
NickM (mail) (www):
Due process is the new obscenity.

In all seriousness, a ruling that the due process clause is implicated when a judge who should have recused himself didn't has the dangerous potential of opening all judgments obtained after denial of a motion to disqualify up to collateral attack - especially in bankruptcy proceedings.

Nick
6.8.2009 10:04pm
Repeal 16-17 (mail):
I agree with the decision, because it's clear that one of the parties in that case was trying to get a biased justice on that court. Regardless of Justice Benjamin's motivations for voting as he did, the actions of Massey Coal stink to high heaven. The concerns of the dissenters can be taken into account in future cases, but in this case the Supreme Court made the only reasonable decision.
6.8.2009 10:36pm
Are you out of your minds? (mail):
Massey Coal bought the court, and Roberts, Alito and Thomas can't see that as a violation of due process? (Due process is beyond Scalia's comprehension so there is little surprise at his dissent.) I'm just glad it didn't take an hispanic woman to explain the issue to them.
6.8.2009 11:05pm
Desiderius:
Here's the guy who's defeat Blankenship bankrolled. I happened to be at that speech.

Ladies and gentlemen, this is your Democratic Party.
6.8.2009 11:19pm
Desiderius:
"Massey Coal bought the court"

From the plaintiff bar, who had bought and paid for McGraw, to the great detriment of the West Virginia economy. Welcome to WVa politics - it's not for the faint of heart. Or the Supreme Court of the United States.

On the other hand, this guy is awesome.
6.8.2009 11:37pm
gator:
Unpublished dissent, Brown v. Bd. of Educ. (1954):

“But there are other fundamental questions as well. With little help from the majority, courts will now have to determine:

1. whether the equal protection clause is violated by schools whose racial composition reflects longtime housing patterns, rather than state-sanctioned discrimination?

2. how quickly must states enforce this ruling? With all deliberate speed, or just within a reasonable amount of time under the circumstances?

3. what if a state wanted to start an ‘affirmative action’ program designed to help minority students by giving them a preference in university admissions under certain circumstances? Would that, too, violate the equal protection clause?

4. after today’s decision, will municipalities be compelled to desegregate their public parks? Their swimming pools? Their golf courses? The privately-owned restaurants operating in state-run airports and parking garages?

5. what if the federal government wants to help minorities by giving them a preference in construction contracts if they have suffered discrimination in the past? Would this violate the constitution?

* * *
39. what must the school district do to comply? Is it responsible only for its own deliberately discriminatory actions, or must it resort to means such as busing in order to overcome centuries of institutional racism?

40. what if an school district used race as a tie-breaker in high school admissions, in order to preserve a racial balance throughout the city of Seattle?”


I know, I know, it’s not quite the same, but still…
6.9.2009 12:41am
ReaderY:
Whatever one thinks of the outcome, this is a decision that is unquestionably within the Court's power to make. The Framers of the 14th Amendment imposed on the States an obligation to conform to a "process" of law, and left it somewhat ambiguous as to what quantum and quality of "process" is "due" in particular situations. This ambiguity gives and indeed requires of the Supreme Court some discretion, in contruing the Due Process clause, to fill in the gaps somewhat and make the best determination its members can, mindful of precedent and history, as to what kind of process is due process.

When the Supreme Court does its job - when it makes a decision about process in determining what kind of process is due, its decision necessarily commands respect. After all, people can always find reason to disagree about where to draw the line, But it has to be drawn somewhere, and the Court, right or wrong, is the legitimate body authorized to draw it. Deciding the matter with finality creates confidence and allows for moving on.

In my view, when the courts even an arguably incorrect decision about process, its members have done their job. There can be no question of their using their powers and offices to impose their own ideas about how things should be on the public in the guise of interpreting the people';s constitution. They really are interpreting it.
6.9.2009 12:52am
ArthurKirkland:
I don't know whether the Supreme Court justices knew or (in at least some cases) cared, but in an earlier chapter of this story the chief justice of the West Virginia Supreme Court recused himself only after the photographs depicting him wining and dining at Mr. Blankenship's side in Monaca were submitted to the court by the Caperton lawyers (thanks to a whistleblower, apparently).

My favorite photograph was this one (although this one also is nice), but the evidence is incomplete because 10 photographs including their female companions are still, I believe, under seal.

The explanations were good, too. "The suggestion I have done something improper is nonsense," Chief Justice Maynard said regarding events — meals and drinks with female companions along the French Riviera — described as a "coincidence."

"I don't know if it's totally a coincidence," Blankenship said.
6.9.2009 12:59am
ArthurKirkland:
I neglected to mention that Chief Justice Maynard had voted in Massey's favor before the photographs emerged.

I can't find any indication in Chief Justice Roberts' dissent that he would necessarily find it objectionable were a judge to rule in favor of a sibling, a child, a mistress, a campaign manager or a best friend -- on his reasoning, such a case would hinge, apparently, on whether a petitioner could establish a substantial, direct pecuniary benefit.
6.9.2009 1:09am
David M. Nieporent (www):
Massey Coal bought the court, and Roberts, Alito and Thomas can't see that as a violation of due process? (Due process is beyond Scalia's comprehension so there is little surprise at his dissent.) I'm just glad it didn't take an hispanic woman to explain the issue to them.
Bought the court? It was a 3-2 vote. Did Massey spend $3M on the other 2 judges who voted for it? If yes, that's pretty shocking that Caperton forgot to mention same; if no, doesn't that argue that there's actually perhaps some merit to Massey's case?
6.9.2009 6:01am
David M. Nieporent (www):
Again, like David, you are missing the point about Buckley and campaign finance cases. The campaign finance cases rely on formal distinctions between contributions and independent expenditures BECAUSE THE RIGHT OF POLITICAL SPEECH IS SO IMPORTANT THAT WE NEED AN EXTREMELY BRIGHT LINE RULE TO AVOID A CHILL EFFECT.

In contrast, judges have no right to sit on the case. The worry that we might "chill" a few judges into unnecessary recusals is not nearly as large a concern. Thus, the need for bright line rules is less.
It's not the judges whose speech is at issue, Dilan, so it's not whether judges have a "right" to sit on the case that's at issue. If speaking to get a judge elected requires that judge to be recused, won't that chill the speech of potential litigants?

If there's a judge who I think is extremely activist or trial-lawyer friendly, and I want to get him off the bench (through speech, of course, not Pelican Brief style), am I not going to be worried that attempting to do so will backfire, because his successor won't be allowed to hear any case that I might have an interest in?
6.9.2009 6:06am
David M. Nieporent (www):
In any case, Dilan, regardless of whether you think the distinction is legally significant or not, it's still false to claim that they gave the money to the judge.
6.9.2009 6:08am
Oren:
They gave money towards the judge's reelection. That's what counts.
6.9.2009 7:22am
Desiderius:
Oren,

"They gave money towards the judge's reelection. That's what counts."

They gave the vast bulk of it to remove the judge's predecessor (McGraw), who would have had to recuse himself from every case before the court by this standard, as the plaintiff bar put him there in the first place.

Given the characters involved, I really don't see where this one's a winner for fair-minded D's, rather than lawyer-party ideologues.
6.9.2009 7:39am
pluribus:

Whose life, liberty, or property was denied by Marshall's decision in Marbury?

Pyrrho:

Umm...Marbury's, unless I misread the case the last 50 times.

Marshall's decision denied Marbury a commission. Marshall had earlier made out the commission in Marbury's favor. It was signed by President Adams but not delivered, and Madison refused to deliver it. Marshall, speaking for a unanimous Supreme Court, said the court had no power to order Madison to deliver it. Petition denied. Marbury had nothing before the case began and nothing when it ended. Is a judicial commission, never delivered, a kind of "property" under the due process clause? Is there some suspicion that Marshall favored Madison when the Court ruled in his favor, thus invalidating Marshall's own previous actions? Had anybody asked Marshall to recuse himself? Was there any existing standard that required Marshall to recuse himself? If Marshall had recused himself, would the decision have been different (his was not the deciding vote in the case)? Allegations that Marshall's decision would fall under the Caperton standard are shallow and flippant.
6.9.2009 7:40am
Apodaca:
it's still false to claim that they gave the money to the judge

"Your Honor, I never punched the plaintiff. I merely created a gradient in space-time with my fist, and his face fell down it."
6.9.2009 8:03am
Oren:


They gave the vast bulk of it to remove the judge's predecessor (McGraw), who would have had to recuse himself from every case before the court by this standard, as the plaintiff bar put him there in the first place.


Let me see if I understand this correctly -- because some plaintiffs' attorneys gave to McGraw, he should be required to recuse himself in cases involving any other plaintiff's attorney.

OK, but by that standard because some corporations gave to Benjamin, he should recuse himself in cases involving any other corporation.

[ Snark aside, what's missing here is that the instance case involved a specific benefactor as an actual party to the case, not some vague general class. ]


Given the characters involved, I really don't see where this one's a winner for fair-minded D's, rather than lawyer-party ideologues.

This is a win for justice in this particular case. What happens in the future with Capterton motions remains to be seen.
6.9.2009 8:08am
Oren:

"Your Honor, I never punched the plaintiff. I merely created a gradient in space-time with my fist, and his face fell down it."

Hon Judge Oren: Unfortunately, your fist is not an inertial reference frame and is therefore unsuitable for analysis according to the conventional laws of physical torts.

Motion DENIED.

[Actually, I'm a physicist, if you can't tell.]
6.9.2009 8:10am
David M. Nieporent (www):
They gave money towards the judge's reelection. That's what counts.
Actually, they spent money against the judge's reelection. Benjamin wasn't "reelected," but elected, and they weren't trying to elect Benjamin, but to defeat the incumbent.


Snark aside, what's missing here is that the instance case involved a specific benefactor as an actual party to the case, not some vague general class.
But so what? Surely the majesterial due process clause, if it encompasses recusals based on mere possibilities rather than showings of actual bias, cannot be limited to the specific narrow fact pattern of Caperton, but to any situation where one might feel the judge is biased. The standard, according to Kennedy, is whether there's a "probability of bias." Surely if the trial lawyer bar spends millions to get a judge elected, it's not just to rule in one case, but in lots of cases.
6.9.2009 8:55am
byomtov (mail):
David Nieporent,

Surely the majesterial due process clause, if it encompasses recusals based on mere possibilities...

"Mere possibiities?" Come on. $3 million in support of a judicial campaign from someone who has a $50 million case coming before the court is a lot more than a "mere possibility."

What happened to common sense?

The dissenters just seem to regard this as a property rights case. If you buy a judge you get to keep him.
6.9.2009 9:13am
SamW:
Did you see Robert's Number 40. To paraphrase: 'What if the parties settle, won't that upset the Judge?'

I am glad they show so much empathy for the poor judge.
6.9.2009 9:39am
MarkField (mail):
pluribus, in the first half of Marbury v. Madison, Marshall found that Marbury had a vested property right in the commission.
6.9.2009 10:36am
Pyrrho:
Marshall's decision denied Marbury a commission. Marshall had earlier made out the commission in Marbury's favor. It was signed by President Adams but not delivered, and Madison refused to deliver it. Marshall, speaking for a unanimous Supreme Court, said the court had no power to order Madison to deliver it. Petition denied. Marbury had nothing before the case began and nothing when it ended. Is a judicial commission, never delivered, a kind of "property" under the due process clause? Is there some suspicion that Marshall favored Madison when the Court ruled in his favor, thus invalidating Marshall's own previous actions? Had anybody asked Marshall to recuse himself? Was there any existing standard that required Marshall to recuse himself? If Marshall had recused himself, would the decision have been different (his was not the deciding vote in the case)? Allegations that Marshall's decision would fall under the Caperton standard are shallow and flippant.

How can you say that Marbury "had nothing before the case began"? He had a legal right to the commission. This was a property right that could not be taken without due process of law, and Marshall even acknowledged the existence of the right: "Mr. Marbury, then, since his commission was signed by the president and sealed by the secretary of state, was appointed; and as the law creating the office gave the officer a right to hold for five years independent of the executive, the appointment was not revocable; but vested in the officer legal rights which are protected by the laws of his country."

Furthermore, you have laid out little more than a straw man. Nobody has claimed that anybody made a motion or that Marshall committed any misconduct under any rule at the time. But I do think that his decision to sit on the case amounted to a denial of due process of law. What difference does it make if the decision would have been different? Is that the standard for due process - you didn't have due process denied as long as the decision would not have been different? We can convict you of a felony by flipping a coin and there has been no due process violation as long as you were actually guilty?

There is simply nothing "flippant" about the argument that Marshall's behavior would fall under the Caperton standard. He clearly had a conflict of interest, and to suggest that Marbury had no property right in his judicial commission is beyond absurd.
6.9.2009 10:40am
David Schwartz (mail):
SamW: It's ridiculous. The idea is not that one is accusing the judge of actual bias or actually issuing biased ruling. It's simply that a person in the judge's situation (through no wrongdoing of the judge) would appear to possibly not be impartial.

It's just like you can't hear a case with AT&T as litigant if you own AT&T stock. It's not that you're a bad person for holding AT&T stock -- it's just that there's an appearance that a person in that situation might not be impartial.

By characterizing it as an attack on the judge's reputation, the CJ completely misses the point.
6.9.2009 10:53am
David M. Nieporent (www):
It's just like you can't hear a case with AT&T as litigant if you own AT&T stock. It's not that you're a bad person for holding AT&T stock -- it's just that there's an appearance that a person in that situation might not be impartial.
Because you have a financial interest in the case. Here, there was no such interest.


"Mere possibiities?" Come on. $3 million in support of a judicial campaign from someone who has a $50 million case coming before the court is a lot more than a "mere possibility."

What happened to common sense?
And now we're back to know-it-when-I-see-it.
6.9.2009 12:00pm
mooglar (mail):
If the other guy had won, yes, he probably should have recused himself as well. But I think what some here are missing is the idea that, in a fair system of justice, you don't get to pick your own judge. By spending millions of dollars to defeat Benjamin, the defendant was trying to do just that, put a judge in place that would be more favorable to his case. This is wholly independent of whether or not he had the right to spend the money on the ads: he clearly did. But he did not have the right to have that judge then hear his case.

And therein also lies the distinction in whether the other guy should be automatically recused if he had won despite the defendant's attempts to defeat him: the defendant still doesn't get to pick his own judge. You can't force someone to recuse him- or herself by going after him or her with attack ads! I would argue that due process requires that your opponent can't bias the tribunal against you, but if you want to bias the tribunal against yourself, I don't see how that violates due process. Obviously defendants and plaintiffs are allowed to disadvantage themselves, after all, otherwise any mistake made by either party or counsel would be reason to declare a mistrial.

The two sides of the coin aren't equivalent in other areas of the law, why are some insisting they should be here? To whit, if you act like an asshole in court and piss the judge off, you can't then claim the judge is biased and get him kicked off the case. But, if you give the judge some money, or a trip, or a bribe, what have you, then not only can you get in trouble but you will also end up with another judge. How is it different here?

I mean, fine, there is the freedom of speech argument. But aren't there all kinds of things that, while you have a right to say, are unwise to say when you have a case pending before a court? You have the right to go on TV and call the judge hearing your case an idiot, right? It's not a good idea, but you can't go and then claim a violation of due process because the judge might be pissed off at what you said, can you? I doubt it. If that were the case, then it would be trivial to ever avoid prosecution by simply publically badmouthing each and every judge about to hear your case.

But I don't see how the fact that you can bias the judge against you by exercising your right to free speech means that, conversely, that therefore you must have the right to try to bias the judge in your favor, as long as you do it just a little bit indirectly. And that's essentially the argument some are making here. But I would contend that doing something to bias the judge against yourself is very different than trying to bias the judge against your opponent (or in your favor). One is allowed but dumb, because it only hurts you, and you have the right to screw yourself over if you want. The other is not allowed because you do not have the right to tip the scales in your favor against your opponent.
6.9.2009 12:23pm
Oren:

Surely if the trial lawyer bar spends millions to get a judge elected, it's not just to rule in one case, but in lots of cases.

Only if you apply the same logic to corporations and unions.
6.9.2009 12:27pm
Oren:

And now we're back to know-it-when-I-see-it.

And again I remind you that I have no problem with judges exercising judgment on a case-by-case basis.
6.9.2009 12:27pm
mooglar (mail):
David M. Nieporent:

Your argument seems to be that the only kind of bias that should be considered when looking at due process rights are specifically bias arising from the judge having a direct and clear financial interest in the case, and that no other forms of bias can or should be considered, including some guy spending millions on ads attacking your opponent to get you elected just before the court hears your case.

I understand that for some time the Supreme Court precedent agreed with you (with the addition that judges couldn't hear contempt cases when the contempt was in their own court or whatever). But now the precedent has changed. My question to you is, outside of that precedent, what in the Constitution or common law or basic ideas of fairness supports that rule? How do you get from the due process clause, which does not limit considerations of bias to strict financial interest in the case, to the rule that, basically, only direct financial interest can or should be considered?

Because that seems to me to be completely arbitrary and fails to really guarantee due process at all. How, in your estimation, is it not a fundamental due process violation when you spend millions of dollars to pick the judge hearing your case? What does due process mean if that isn't a violation of it? How can we claim to have due process rights when no matter how clearly the judge is biased against you, your rights aren't violated unless the judge will make money if he decides one way rather than the other? By what logic can you contend that financial interests are the only interests that could influence or bias a judge's ruling?
6.9.2009 12:35pm
David Schwartz (mail):
It's just like you can't hear a case with AT&T as litigant if you own AT&T stock. It's not that you're a bad person for holding AT&T stock -- it's just that there's an appearance that a person in that situation might not be impartial.
Because you have a financial interest in the case. Here, there was no such interest.
Yes. So?

Same problem for a different reason. But it's the problem that's important, not its reason.
6.9.2009 12:38pm
Dilan Esper (mail) (www):
Bought the court? It was a 3-2 vote. Did Massey spend $3M on the other 2 judges who voted for it? If yes, that's pretty shocking that Caperton forgot to mention same; if no, doesn't that argue that there's actually perhaps some merit to Massey's case?

Or maybe that they are worried about the next election.
6.9.2009 12:42pm
Dilan Esper (mail) (www):
If speaking to get a judge elected requires that judge to be recused, won't that chill the speech of potential litigants?

No, because the Caperton decision doesn't apply to merely potential litigants. On the other hand, ACTUAL litigants are a different matter.

And bear in mind as well that the speech has to be pretty extreme to give rise to scrutiny. Simply saying "I think Judge X is a bad judge" isn't enough. Spending $3 million to unseat Judge X is a very different matter.
6.9.2009 12:44pm
Dilan Esper (mail) (www):
And now we're back to know-it-when-I-see-it.

David, I have practiced law for over a decade, and have seen a number of recusal motions, and if it is your hope to get away from "I know it when I see it" in this area, it is a vain hope.

I would suggest the best way to understand Caperton is that the West Virginia Supreme Court of Appeals should be policing this themselves. They should be the ones who should be able to tell that this defendant was trying to buy justice and enter the proper recusal orders. But they didn't. So the Supreme Court has to step in because they are the only ones who can police this. But it's still going to be "I know it when I see it". Because that's the only workable test.

In that sense, if you want to criticize the Kennedy opinion as vague, go ahead. But vagueness is inevitable, and the only other alternative is to let a coal company buy a Supreme Court seat in West Virginia, which is not compatible with the fundamental fairness that the Due Process clause requires.
6.9.2009 12:52pm
Pyrrho:
They should be the ones who should be able to tell that this defendant was trying to buy justice and enter the proper recusal orders. But they didn't. So the Supreme Court has to step in because they are the only ones who can police this. But it's still going to be "I know it when I see it". Because that's the only workable test.
Thanks for stating clearly what I have been trying to say. The issue hasn't changed - judges all along have been deciding recusal motions on a case-by-case basis. The question is who makes the decision - the judges themselves or the Supreme Court (and, as I have noted, the Supreme Court is not likely to take these cases barring extraordinary facts like these).
6.9.2009 1:19pm
Smooth, Like a Rhapsody (mail):
"Vagueness is inevitable" is a cop-out.

The two heretofore stated general instances in which the failure to recuse gives rise to due process problems are NOT vague. They are, in essence:
1. The judge works on commission or has a direct financial stake in the outcome.
2. The judge was once in the role of adversary in the case or a companion case.

Those are what most can accept as bright line rules.

Here the court has decided to add a 3rd category of cases to the list of those eligible for due process analysis.
And that category is extremely fuzzily defined.

This is a perfect example of what drives conservatives crazy. The "right" result--the I-know-it-when-I-see-it result--is not always the correct legal result.

Blankenship is scum; Benjaimin should have used his head, for god sakes; THE LITTLE GUY GOT SCREWED!!! All true.


Empathy rules.
6.9.2009 1:35pm
Oren:

Those are what most can accept as bright line rules.

Yes, but as antecedent we must also be convinced that a bright-line rule which leads to bad result in some cases is better than a fuzzy standard that leads to bad results in some other cases.
6.9.2009 1:46pm
David Schwartz (mail):
They should be the ones who should be able to tell that this defendant was trying to buy justice and enter the proper recusal orders. But they didn't. So the Supreme Court has to step in because they are the only ones who can police this. But it's still going to be "I know it when I see it". Because that's the only workable test.
Courts usually don't get to make policy. It would take a lot of very unusual cases for a coherent set of rules to emerge on this. Congress could, if they wanted to, codify this, but it seems doubtful that they will.

If you accept that this kind of apparent possible conflict of interest sometimes offends due process, then you really only have three alternatives:

1) Congress has to codify when and how.

2) The Supreme Court has to evolve a series of tests as appropriate cases come their way to settle the law.

3) The Supreme Court has to do it based on knowing it when they see it, and we'll have to live with unsettled law. At least until we get to 2.

So we have a new unsettled area of law that's not particularly interesting because it only applies to narrow sets of facts. It's probably best handled as a one-off, but if it keeps repeating, look for options 2 or 3 to come into play.
6.9.2009 2:23pm
Dilan Esper (mail) (www):
The two heretofore stated general instances in which the failure to recuse gives rise to due process problems are NOT vague. They are, in essence:

You act as if making sure we always have a bright line rule is more important than doing justice in a particular case where a lot of money is at stake and a party has perverted the justice process.

Where in the Due Process clause does it state that the courts are required to impose bright line rules? There may be administrative reasons to sometimes prefer them, but they aren't always consistent with the fundamental fairness in judicial proceedings that the Constitution requires.

So no, "vagueness is inevitable" is not a copout. You can avoid vagueness by not requiring Due Process. But then you are imposing your own values as to what is important (having clear legal rules) over what the Constitution requires.
6.9.2009 2:48pm
MarkField (mail):

Where in the Due Process clause does it state that the courts are required to impose bright line rules?


In fact, the very language of the DPC (like many other clauses) is the very antithesis of a bright line rule. Demanding bright line rules is a way to re-write the Constitution so that it reads like the tax code instead of an organic document. If the Framers had wanted bright line rules, they could have written them; demanding them in the face of the general language they used instead simply undermines the very notion of having a Constitution.
6.9.2009 3:26pm
Dilan Esper (mail) (www):
If the Framers had wanted bright line rules, they could have written them; demanding them in the face of the general language they used instead simply undermines the very notion of having a Constitution.

I wouldn't put it quite that strong. There are some bright line rules in the Constitution (the age of the President, for example, or the requirement that there be one Supreme Court). Bright line rules are just as much a part of a governing charter as more amorphous provisions are. Every Constitution has a mixture of both.

The Due Process clause plainly does not call for bright line rules but rather, the evaluation of the fundamental fairness of a proceeding.
6.9.2009 3:39pm
pluribus:
MarkField:

pluribus, in the first half of Marbury v. Madison, Marshall found that Marbury had a vested property right in the commission.

Again, I have to accept your correction. Well, maybe it was an answer rather than a correction, because I made the point in the form of a question rather than an assertion. Obviously, I didn't think of Marbury's commission as property, and I should have. If I recall correctly, Jefferson argued that it wasn't property because it hadn't been delivered, but Marshall found otherwise, and he, not Jefferson, was the Supreme Court justice. And, for whatever it is worth, my sympathies are almost invariably with Marshall in his differences with Jefferson. I have been wanting to tell you for a while now how welcome your posts are here. Your knowledge of history, as well as constitutional law, is impressive!
6.9.2009 4:56pm
MarkField (mail):

I wouldn't put it quite that strong. There are some bright line rules in the Constitution (the age of the President, for example, or the requirement that there be one Supreme Court). Bright line rules are just as much a part of a governing charter as more amorphous provisions are. Every Constitution has a mixture of both.


You're right, of course. I meant to limit my comment to those parts of the Constitution like the DPC which were clearly intended to be amorphous. And to recognize that, in Marshall's words, “A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. …In considering this question, then, we must never forget that it is a Constitution we are expounding.”

Today's conservative justices still rebel against this understanding.
6.9.2009 5:12pm
MarkField (mail):

And, for whatever it is worth, my sympathies are almost invariably with Marshall in his differences with Jefferson.


I agree. Jefferson had a reputation as a legal scholar, but I'm not, in general, impressed with him as such. I'm impressed with him in other ways, of course.


I have been wanting to tell you for a while now how welcome your posts are here. Your knowledge of history, as well as constitutional law, is impressive!


That's very nice of you and I really appreciate it. Your own posts are ones I always make sure to read. In a real life conversation you'd see me nodding in agreement far more often than is feasible on the net.
6.9.2009 5:18pm
Desiderius:
Oren,

"Let me see if I understand this correctly -- because some plaintiffs' attorneys gave to McGraw, he should be required to recuse himself in cases involving any other plaintiff's attorney."

It was my understanding that the plaintiff bar, as a class, generously funded McGraw's election and re-election, which was what made him so difficult to defeat, even as he became an embarrassment to most Democrats in the state. That is, those not blinded by ideology or naked self-interest.

Watch the video I linked and ask yourself if it meets the appearance of bias standard. I'd say it goes well beyond the mere appearance. Remember, McGraw was a sitting justice when he delivered that speech.

And, no, I do not think he should have been required to recuse himself, least of all by a court in Washington D.C. unfamiliar with the facts on the ground. You're the one advancing that argument.
6.9.2009 5:41pm
Desiderius:
pluribus,

"I have been wanting to tell you for a while now how welcome your posts are here. Your knowledge of history, as well as constitutional law, is impressive!"

I'll second that comment. On the basis of pure content, MarkField is my favorite commenter, thought LM noses him out in the all-around category due to his winning personality.
6.9.2009 5:43pm
Oren:



It was my understanding that the plaintiff bar, as a class, generously funded McGraw's election and re-election, which was what made him so difficult to defeat, even as he became an embarrassment to most Democrats in the state. That is, those not blinded by ideology or naked self-interest.

The plaintiff bar is not a single person or entity, as you admit, they are a class just like corporations and unions. If we are going to have judicial elections, plantiffs' attorneys have the right to try to elect friendly judges just as well as corporations, unions, tough-on-crime advocates and the whole lot of them. [ Of course, I oppose judicial elections, but that's another kettle of snakes. ]

If any individual attorney, corporation, union or their principals donated to the cause of electing McGraw, he should have recused. That is the standard expounded today -- that a judge may not sit in judgment of a particular entity that put him in his seat.
6.9.2009 5:48pm
Dilan Esper (mail) (www):
Desid:

There's a big difference between generally funding candidates who may agree with you and funding the defeat of candidates who may not-- especially where one person's funding doesn't constitute 2/3rds of the total amount spent-- and spending 2/3rds of the total amount spent in the election to influence the result of a specific case.

You are missing the obviousness factor here. Yes, all judicial elections have an element of sleaze in them (a good reason to appoint judges). But we have all sorts of doctrines in the area of recusal and disqualification that distinguish between a general air of corruption and attempts to influence a specific case. This was an attempt to influence a specific case and the Supreme Court understood it as such.
6.9.2009 6:30pm
Desiderius:
Oren,

"If any individual attorney, corporation, union or their principals donated to the cause of electing McGraw, he should have recused. That is the standard expounded today -- that a judge may not sit in judgment of a particular entity that put him in his seat."

IANAL, so I freely admit that I can't back up my suppositions with facts (maybe JBG can employ his Google-Fu to the matter), but my guess (based on living in WV at the time) would be that there were very few cases that came before Justice McGraw that didn't involve lawyers who had individually contributed to his election and re-election.

I join you in your opposition to judicial elections for just that reason.
6.9.2009 6:37pm
Desiderius:
Dilan,

"This was an attempt to influence a specific case and the Supreme Court understood it as such."

You're begging the question. Blankenship took down McGraw because he was an embarrassment to the state and no one else had the money to get it done. It was not to influence a specific case.
6.9.2009 6:40pm
Dilan Esper (mail) (www):
You're begging the question. Blankenship took down McGraw because he was an embarrassment to the state and no one else had the money to get it done. It was not to influence a specific case.

If that's the case, then the Caperton decision does no injustice, as the new Justice remains on the Court. He just has to recuse himself from this one case, and since Blankenship was just concerned about the general quality of West Virginia justice, that's not a problem, right?

Often times, recusal motions come down to whether two events are contemporaneous enough to give rise to an inference that there may be some attempt at influence. This guy took the state Supreme Court justice down with 2/3rds of all the spending in the race at a time when he had a huge case pending before the state Supreme Court. It follows as night follows from day that the guy who is on the Court because of this guy's largess shouldn't be hearing THIS case. He can hear other cases. He may even hear other cases in the future involving this defendant. But he can't hear THIS case.

And since Blankenship was motivated by nothing more than civic concern, it shouldn't upset him one bit, as he has still done his part to improve the West Virginia Supreme Court.
6.9.2009 7:23pm
ArthurKirkland:
After considering the entirety of the circumstances -- the parties (including the party at the French Riviera, of course), the judges, the decisions, the elections -- I renew my proposal that the United States offer to relocate Israeli citizens to West Virginia and west Texas.

It's a win-win-win-win-win-win-lose. The only losers would be the minor potentates who currently have the run of West Virginia.
6.9.2009 7:45pm
Desiderius:
ArthurKirkland,

"I renew my proposal that the United States offer to relocate Israeli citizens to West Virginia"

For once, we are in full agreement. I can think of no measure that would more benefit the Great State.

Dilan,

Fair enough.
6.9.2009 7:58pm
markm (mail):


Whose life, liberty, or property was denied by Marshall's decision in Marbury?

Pyrrho:
Umm...Marbury's, unless I misread the case the last 50 times.

Marbury lost a job. That's not life, liberty, or property.
6.9.2009 9:32pm
David M. Nieporent (www):
If any individual attorney, corporation, union or their principals donated to the cause of electing McGraw, he should have recused. That is the standard expounded today -- that a judge may not sit in judgment of a particular entity that put him in his seat.
The problem is, no matter how stubbornly you insist this, that is not the standard announced yesterday. Probability of bias. That's the "standard."
6.9.2009 10:14pm
David M. Nieporent (www):
"we must never forget that it is a Constitution we are expounding."

The great thing about this line of Marshall's is that it sounds profound without actually saying anything at all.
6.9.2009 10:16pm
Dilan Esper (mail) (www):
The great thing about this line of Marshall's is that it sounds profound without actually saying anything at all.

If you just read the line, sure, but if you read the context, it's clear enough.
6.10.2009 12:41am
Pyrrho:
Marbury lost a job. That's not life, liberty, or property.
I would respond to this, although it has been clearly addressed in the subsequent posts.
6.10.2009 12:43am
byomtov (mail):
The problem is, no matter how stubbornly you insist this, that is not the standard announced yesterday. Probability of bias. That's the "standard."

I don't understand whether you are objecting to the vagueness of the majority's standard, or the ruling itself. IOW, do you think that the failure to recuse was wrong, but should be allowed because of the lack of clarity in the rules and the standard set by the majority, or do you see no reason for recusal?

If the former, wouldn't Roberts have done better to try to move towards improving the rules, rather than listing a bunch of possible problems and throwing up his hands at the futility of it all?
6.10.2009 10:16am
Oren:

The problem is, no matter how stubbornly you insist this, that is not the standard announced yesterday. Probability of bias. That's the "standard."

You are right, that's not the standard, it is an example of how that standard might be realized in a factual situation. Mea culpa.
6.10.2009 10:47am
Peter Thomas (mail):
In law school many (30+) years ago, I was always infuriated by the opinions I read of Frankfurter and of Lehman (New York Court of Appeals) (iirc) which would respond to a difficult case by saying, in essence, "the Legislature has written (a) no law, (b) a bad law, (c) an incoherent law, which this court declines to "fix" by its own novel decision in the absence of legislative guidance. The legislature, we hope, will act quickly to correct this problem." I'm not so quick, these days, to criticize such an opinion. The only problem is, there are so damn few of them.
6.10.2009 5:44pm
publius (mail):
Credit goes to the original poster for this comment on the Massey opinion:

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

Obviously corrupt elected judges are a problem, and we have a big share of them in Washington State. But simply looking back at who funded prior campaigns and then arguing about whether recusal is warranted won’t come close to solving the problem.

The problem with elected judges is they’re looking out for their reelection races. They don’t care who funded their campaigns before - they want to make sure massive independent expenditures aren’t aimed at them going forward.

If there have to be elected judges, term limits are imperative.

Here are some questions that result in bad answers when they’re asked about the appellate bench in Washington State:

- do they act honestly, and with integrity, when deciding claims before them?

- do they consider the legal arguments both parties raise, or do they make up false claims and attribute those straw-man arguments to the party they want to lose?

- do their opinions describe each party’s arguments, or are they instead packed with lies about one party's claims because the judge wanted to give a big-money win to his friends on the other side?

Where you see these problems is when governments are parties before the appellate courts and their revenue streams are at issue. Governments never contribute directly to judicial candidates’ campaigns (governments can’t spend public money that way). However, they’re the entities judges most likely will abuse their authority to favor in public finance cases. That’s because the beneficiaries of government contracts can bring massive amounts to bear against an incumbent judge running for reelection (via PACs).

That’s why the Massey-type concerns miss the mark – that isn’t the reason for most judicial corruption. Even if judges recused themselves when their prior big campaign contributors appeared before them it wouldn’t come close to fixing the problem.

Here’s an example of the Washington State Supreme Court lying repeatedly in its opinion about the claims of the taxpayers in order to uphold a big illegal tax revenue stream:


http://www.freewebs.com/gogop1/.

There the justices repeatedly mischaracterize the appellants’ legal claims because those politicians with robes wanted to uphold the excessive taxing. In that case the justices acted corruptly because deep-pocket entities waved both a carrot and a stick in their faces —

The Carrot: We will fill your campaign coffers with tons of PAC money when you seek re-election if you abuse your authority for us in this case.

The Stick: We will fill the campaign coffers of your opponent unless you lie and give us the win in this matter.

A recusal policy based just on past campaign contributions wouldn’t have taken away either that carrot or that stick from the parties waving them. Those deep pockets weren’t before the court; the respondents instead were their sugar-daddies - the two local governments and the state government (none of whom contributed directly to any judicial campaigns).

Entities that are direct financial beneficiaries of local governments have some of the deepest pockets of all, and they are frequent contributors of big amounts to judicial campaigns (via PACs). In Washington in 2006 the three Supreme Court campaigns had spending of over $4 million. Special interests want those seats because the justices lie to engineer outcomes they want.

The money goes to PACs and they then make the huge independent expenditures. That’s why judges in Washington State are inclined to abuse their authority when governments are before them with “little guys” on the other side, and it has absolutely nothing to do with whom their prior campaign contributors were.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
6.11.2009 11:38am

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